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Forbush v. J.C. Penney Co.

decided as corrected.: June 25, 1993.

MARY JANE FORBUSH, PLAINTIFF-APPELLANT,
v.
J.C. PENNEY COMPANY, INC., PENSION PLAN, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Texas. D.C. DOCKET NUMBER CA3-90-2719-T. JUDGE Robert B. Maloney

Before Reynaldo G. Garza, Higginbotham, and Emilio M. Garza, Circuit Judges.

Author: Higginbotham

HIGGINBOTHAM, Circuit Judge:

I.

This is an interlocutory appeal from the district court's refusal to certify a class. Plaintiff Mary Jane Forbush, a vested retiree under the J.C. Penney Company Pension Plan, sued Penney on behalf of herself and all those similarly situated. Forbush worked at a California Penney store from 1970 until 1983, when she was laid off at the age of 62. Under the applicable terms of the Penney pension plan, Forbush became eligible to receive her benefits when she reached the age of 65 in 1985. The plan in effect at that time, however, offset the money due Forbush under the plan by the amount she was estimated to receive from Social Security. Since Forbush's estimated Social Security benefits exceeded her benefits under the plan, the company determined that she was entitled to nothing.

Forbush filed this class action suit in U.S. District Court for the District of Maryland in 1988, claiming that the plan's method of estimating Social Security benefits violated several provisions of ERISA. See 29 U.S.C. § 1001 et seq. After the Maryland district court ordered the case transferred to the Northern District of Texas, Forbush moved for certification of the class. In her motion Forbush sought to represent all former and current Penney employees:

1) who have been employed by Penney at any time after January 1, 1976;

2) who have, or may obtain, a vested right to benefits under the pension plan; and

3) whose pension benefits have been or will be reduced or eliminated as a result of the plan's overestimation of their Social Security benefits.

Forbush estimated the size of the class at 10,000.

II.

Penney opposed Forbush' motion on several grounds, but relied most heavily on the fact that the potential class was covered by four different pension plans. From 1976 to 1982, the plan used the "prior earnings method" in estimating a retiree's Social Security benefits. This method assumed that an individual's earnings before joining the company were similar to the wages she received during her first year with Penney. As Forbush points out, this method had an especially negative impact upon women retirees, for whom the assumption of full-time employment during all of the years before coming to Penney was unrealistic.

In July 1982, Penney offered an alternative method for estimating Social Security benefits. In addition to the prior earnings method, retirees could request that their Social Security benefits be determined under the "zero earnings method." This second method relied entirely on the employee's earnings with Penney, assuming zero earnings elsewhere, and then offset that amount by 60%. Penney instituted yet a third method of estimating Social Security benefits in 1984, a two-step "prorated method." It first determined the retiree's total wages by disregarding all non-Penney earning years, and then prorated this sum by multiplying it by the number of years in service and then dividing by thirty. Penney finally decided to eliminate the social security offset from the pension plan in 1989.

Forbush sought certification of the class under Fed.R.Civ.P. 23 (b) (2).*fn1 The district court, however, denied Forbush's motion, holding that the "problem with the proposed class is that the merits of each class member's claim will have to be decided on an individual basis." Since several "issues will have to be resolved in each individual case before members of the class would be entitled to relief," the district ...


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